Digests

Latest

Action by the plaintiff, Mackey, against the defendant, the Province, for damages to compensate for personal injuries. In 2007, the plaintiff, age 17, was part of a school choir visiting Victoria from Arizona. While en route to a performance, the plaintiff climbed a concrete baluster on a railing along the perimeter of a pedestrian plaza overlooking the waterfront. He swung around a lamp post that proved to be severely corroded. The lamp post came loose and the plaintiff fell from approximately 20 feet to a concrete walkway. The plaintiff suffered a traumatic brain injury and was hospitalized for five weeks. The Province, through a now-dissolved Crown corporation, owned and managed the plaza, including the railing and lamp post. The Province issued third party claims against the School district and chaperones responsible for the plaintiff and other students at the time of the accident. The Province took the position that the accident was wholly the fault of the plaintiff, or the plaintiff and the third parties. The plaintiff claimed that but for his injury, there was a real and substantial possibility he would have become an orthopedic surgeon. The Province submitted that the plaintiff’s employment prospects were unchanged, as he was an average student who was and remained capable of modest employment. ... [read more]

Appeal by the estate trustees, Rigsby and Shackleton, from an order requiring the parties to bear their own costs. The appellants and the three respondents were siblings. Along with a sixth child, the parties were the residual beneficiaries under their mother’s will. The appellants were the estate trustees and appointed under a power of attorney. In 2008, the respondents commenced an application seeking the appellants’ removal as trustees, a passing of accounts, and repayment of amounts taken from the estate. The action settled in 2014. The parties were unable to agree on disposition of the costs of the action and agreed to refer the matter to the court. The motion judge found that the terms of the settlement reflected divided success, justifying an order that each party bear their own costs. The appellants obtained leave to appeal to the Court of Appeal. They submitted that they were duty bound to defend the action and the estate, and that in the absence of serious or unreasonable misconduct, their costs were payable out of the estate. ... [read more]

Application by Suthanthiran, Best Theratronics Ltd. and Best Medical Belgium for leave to appeal an order directing seized material to be sent to Belgium for use in a criminal investigation. Belgian authorities investigated fraudulent transactions allegedly perpetrated by the applicants. They officially requested the assistance of Canada in searching and seizing records in possession of the applicants. The Canadian authorities complied. They obtained a warrant and seized material that included information related to trade secrets and other sensitive commercial information. The applicants contended that the information was highly valuable and could destroy their business if disclosed to a commercial rival. The applicants alleged that one such rival was partially owned by the Belgian government. The government of Canada obtained an order directing the seized material be sent to Belgium for use in the criminal investigation. The applicants sought leave to appeal the order. ... [read more]

Appeal by the accused, Brown, from convictions for second degree murder and assault with a weapon. The accused and Reid were part of a group that got into a fistfight with another group of attendees at a casino. Both groups were told to leave the premises. Minutes later, two members of the opposing group were shot by two different shooters. One of the shootings proved to be fatal. The accused and Reid were convicted at trial and appealed to the Court of Appeal. The accused’s appeal was dismissed. The sole basis for the accused’s conviction was statements he made to Sanders contained in Sanders’ KGB statement, admitted after Sanders recanted at trial. On appeal, a new trial was ordered for Reid on the basis the trial judge failed to review the central theory of Reid’s defence. Reid was acquitted following the second trial based on reasonable doubt he was one of the shooters. The accused appealed to the Supreme Court of Canada based on new evidence arising from Reid’s trial. The new evidence related to the testimony and statements to police by an eyewitness to the shooting incident, Sahal. Some of the statements by Sahal to police were made after the conclusion of the accused’s trial, and were not disclosed to the accused until after his appeal was dismissed by the Court of Appeal. Aspects of the statements supported an inference that the accused was not one of the shooters. The Supreme Court of Canada remanded the appeal to the Court of Appeal in conjunction with the application to admit the new evidence. ... [read more]

Appeal by the accused, Daley, from a conviction for possession of fentanyl for the purpose of trafficking. A pawn shop owner called police after the accused attempted to pawn jewelry the shop owner believed was identified in a police flyer. Police arrived and the accused was detained within the store for 40 minutes without being advised of her right to counsel. In response to a question from police, the accused pointed out her vehicle in the parking lot. Another police officer approached the passenger in the vehicle and asked her for identification. The officer observed jewelry in the passenger’s purse and arrested her. The officer seized two purses and searched the contents. The accused was arrested after a knife was seized from her purse. An incidental search of the accused resulted in seizure of seven fentanyl patches. The accused was arrested. The trial judge found that the breach of the accused’s right to counsel did not impugn the subsequent searches. The detention was not arbitrary, and the incidental searches were reasonable and lawful. The accused appealed the consequent conviction. ... [read more]

Motion by Cawthorne to quash the appeal by the Minister of National Defence (Minister) from a judgment of the Court Martial Appeal Court of Canada setting aside his convictions for possession of child pornography and ordering a new trial. Appeal by the Minister from a judgment of the Court Martial Appeal Court of Canada declaring invalid s. 230.1 of the National Defence Act (Act) after military judges acquitted Gagnon of sexual assault and allowed Thibault’s plea in bar of trial. The Court was called upon to determine whether provisions of the Act giving the Minister the authority to appeal from decisions of a court martial or the Court Martial Appeal Court violated ss. 7 or 11(d) of the Canadian Charter of Rights and Freedoms (Charter). During Cawthorne’s trial, defence counsel brought a motion for a mistrial on the basis of the prejudice arising from inadmissible re-examination evidence obtained from Cawthorne’s former girlfriend. The military judge dismissed the motion, and the jury panel returned a verdict of guilty on both counts charged. A majority of the Court Martial Appeal Court found that the mistrial ought to have been granted. The Minister appealed as of right to the Court, pursuant to s. 245(2)(a) of the National Defence Act. The Minister argued that the military judge made no error in declining to grant a mistrial. Cawthorne sought to quash the Minister’s appeal on the basis that s. 245(2) violated the Charter. In the other matter, Gagnon and Thibault were each charged with sexual assault. Gagnon was acquitted, and the Minister appealed on the basis that the military judge erred by putting the defence of honest but mistaken belief in consent to the panel. Thibault presented a plea in bar of trial, claiming that the matter was not under military jurisdiction because of an insufficient nexus with military service. The military judge allowed the plea, and the Minister also appealed. Gagnon and Thibault brought motions to quash the Minister’s appeals on the basis that s. 230.1 of the National Defence Act, which gave the Minister the authority to appeal to the Court Martial Appeal Court, violated s. 7 of the Charter. The Court Martial Appeal Court dismissed the motions to quash but agreed that s. 230.1 of the National Defence Act should be invalidated. ... [read more]

Appeal by Ferme Vi-Ber inc. and others from a judgment of the Quebec Court of Appeal setting aside a decision granting their action against La Financière agricole du Québec (La Financière). The Court was called upon to identify the rules governing the interpretation of the rights and obligations of the parties to the Programme d’assurance stabilisation des revenus agricoles (ASRA Program), administered by La Financière. The appellants were Quebec farm producers that voluntarily participated in the ASRA Program. Under that program, La Financière undertook, in return for contributions from producers, to protect them from the income fluctuations associated with the agricultural market. The appellants contested certain decisions made by La Financière in determining their compensation payments for 2007. Those decisions were related to the calculation method chosen by La Financière in determining the compensation payable under the program, which aimed to protect participants from having their income drop below a predetermined percentage of the average income of a skilled worker. La Financière took account of additional income received as farm financial assistance from the federal government (linkage) based on the amounts the average benchmark farm would have received, as opposed to the amounts each ASRA Program participant actually received from the government. The appellants argued that the ASRA Program was a contract of insurance and that La Financière had improperly incorporated that additional income into its calculations so as to reduce their compensation under the program, in violation of the terms of the contract, which had to be interpreted on the basis of their reasonable expectations as insured persons. The producers applied to the Superior Court, which allowed their action, characterizing the ASRA Program as a contract of insurance and ordering La Financière to pay them substantial additional compensation for 2007. The Court of Appeal set aside that judgment, finding that the ASRA Program was not a contract of insurance and that the impugned decisions were reasonable. The appellants asked the court to declare that La Financière had to, under the ASRA Program, deduct any amounts to which each participant was entitled under a federal program on an individual basis. ... [read more]

Appeal by the Nova Scotia Barristers’ Society (Society) from a decision concluding that it overstepped its statutory authority in taking steps to restrict the ability of graduates of Trinity Western University’s (TWU) law school from articling in Nova Scotia. TWU was a private university operating in British Columbia under the aegis of the Evangelical Free Church of Canada. Its founding statute stated that students of TWU would be educated with an underlying philosophy and viewpoint that was Christian. All students and staff were required to adhere to a Community Covenant (Covenant) that, among other things, prohibited sexual intimacy outside the marriage of a man and a woman. TWU’s student body included LGBTQ students and the Covenant prohibited harassment based on sexual orientation. TWU sought to add a law school to its campus, developed a plan, and proposed curriculum that it submitted to the Federation of Canadian Law Societies (Federation) for approval. A Special Advisory Committee established by the Federation concluded in December 2013 that there was no public interest reason for preventing graduates of TWU’s law school from practicing law. The Approval Committee approved the law degree from TWU’s proposed law school. The Society nonetheless chose to conditionally approve the law school’s graduates for enrollment in the Nova Scotia articling program. In April 2014, the Society’s Council resolved that the Covenant was discriminatory and stated that it would not approve the proposed law school at TWU unless TWU either exempted law students from signing the Covenant or amended the Covenant for law students in a way that ceased to discriminate. The Society’s resolution was based on the negative impact the Covenant’s definition of marriage had on LGBTQ individuals, historically subject to discrimination in the Nova Scotia justice system. TWU and Volkenant, a graduate of TWU’s undergraduate program, applied for judicial review of the Society’s decision. Volkenant believed in the Covenant and wanted to be a lawyer. The Society responded with an amendment to its regulatory definition of a law degree to deny the designation to universities engaged in discriminatory admissions or enrolment policies. The judge held that the Society’s resolution and amended regulation were unauthorized by the Legal Professions Act, as it was the Society’s mandate to uphold and protect the public interest in the practice of law, not to oversee the public interest generally. The judge found that the Society’s objective was to regulate the conduct of TWU, not to regulate the practice of law in Nova Scotia. Regulating law schools themselves, whether in B.C. or Nova Scotia, was not within the authority of the Society. ... [read more]

Appeal by Wilson from a judgment of the Federal Court of Appeal affirming a decision finding a labour adjudicator decision allowing Wilson’s unjust dismissal complaint to be unreasonable. The Federal Court of Appeal agreed with this conclusion, but reviewed the issue on a standard of correctness. Wilson worked for Atomic Energy Canada Limited (AECL) for four and one half years until his dismissal in November 2009, maintaining a clean disciplinary record. Wilson filed an “Unjust Dismissal” complaint in December 2009, claiming that he was unjustly dismissed contrary to s. 240(1) of the Canada Labour Code (Code). AECL indicated that Wilson was terminated on a non-cause basis and was provided a generous dismissal package that well exceeded the statutory requirements. AECL sought a preliminary ruling on whether a dismissal without cause together with a sizeable severance package meant that the dismissal was a just one. The Adjudicator concluded that an employer could not resort to severance payments, however generous, to avoid a determination under the Code about whether the dismissal was unjust. Because AECL did not rely on any cause to fire him, Wilson’s complaint was allowed. The Application Judge found this decision was unreasonable because, in his view, nothing in Part III of the Code precluded employers from dismissing non-unionized employees on a without-cause basis. The parties before the Court, as they had in all the prior judicial proceedings, accepted that the standard of review was reasonableness. At common law, a non-unionized employee could be dismissed without reasons if he or she was given reasonable notice or pay in lieu. The issue in this appeal was whether Parliament’s intention behind amendments to the Canada Labour Code in 1978 was to offer an alternative statutory scheme consisting of expansive protections much like those available to employees covered by a collective agreement. ... [read more]

Appeal by Lafortune and other hog and piglet producers from a judgment of the Quebec Court of Appeal affirming a decision of the Quebec Superior Court dismissing their action against La Financière agricole du Québec (La Financière). The Court was called upon to identify the rules governing the rights and obligations of parties to the Programme d’assurance stabilisation des revenus agricoles (ASRA) Program, administered by La Financière. The appellants were Quebec producers that participated in the ASRA Program. Under that program, La Financière undertook, in return for contributions from participants, to support them with compensation payments. The appellants contested the value of the compensation they had received from La Financière under the ASRA Program for the years 2006 to 2008. They equated the program with a contract of insurance and argued that the compensation they had received was neither sufficient nor consistent with their reasonable expectations as parties to such a contract. In their view, the process that had been followed and the statistical and accounting methods that had been used in the economic study carried out to calculate their compensation payments for the years in question had yielded an unfair result. The Superior Court dismissed the appellants’ claim. It held that the ASRA Program was not a contract of insurance within the meaning of the Civil Code of Québec, that La Financière’s decisions were fair and that it had employed appropriate methods in making them. The Court of Appeal upheld that judgment. ... [read more]